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Judgments - Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

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32.  In L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525F, Lord Mustill said:

“Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.”

Lord Mustill then observed that the approach which he proposed “involves a single indivisible question, to be answered largely as a matter of impression".

33.  In deciding what simple fairness demands in the present context it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise such fresh rules as appear to her to be required in the circumstances.

34.  Secondly, as Mr Ockelton put it in the tribunal’s decision here, “the immigration rules are essentially executive, not legislative"; the rules “are essentially statements of policy". Longmore LJ said much the same thing in the Court of Appeal (para 27): “the rules are statements of executive policy at any particular time. … Policy statements change as policy changes.” This to my mind is the core consideration in the case. This, and the fact that, save in those few specific cases (such as HC395 in 1994) when express transitional provisions were included in the rule changes, decisions invariably have been taken according to the up to date rules.

35.  The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33(5) of the 1971 Act provides that: “This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.” The Secretary of State’s immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control.

36.  Mr Drabble submits that the analogy to be drawn here is with social security law and in this regard he seeks to pray in aid the Court of Appeal’s decision in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778. The claimant there was seeking special hardship allowance, a benefit payable to those suffering, as he was, a prescribed disease. Before he made his claim, but still within the period during which he was permitted to make it, the Statute providing the benefit was repealed. The Court held that the claimant was nonetheless entitled to the benefit. Having analysed a number of the authorities I said this:

“A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right. . . .[W]hether or not there is an acquired right depends upon whether at the date of repeal the claimant has an entitlement (at least contingent) to money or other certain benefit receivable by him, provided only that he takes all appropriate steps by way of notices and/or claims thereafter.” (pp1787H - 1788F)

37.  So far from assisting Mr Drabble’s argument, Maguire seems to me to point up the critical distinction between, on the one hand, legislation conferring “money or other certain benefit” and, on the other hand, a mere statement of policy as to how presently it is proposed to exercise an administrative discretion when eventually it comes to be exercised, a policy which may change at any moment. In the former case (Maguire) the right vests even before the necessary claim is advanced; in the latter case no right accrues even after the application is made. Indeed the argument based on Maguire surely proves too much: if the situations were truly analogous, the appellant here would not have needed even to make her application for leave to remain.

38.  In my opinion the truer analogy is with planning law and practice which requires that all applications are determined in accordance with whatever policies are in force at the time the decisions are taken.

39.  Standing back, therefore, from the detail and addressing, as Lord Mustill proposed in L'Office Cherifien [1994] 1 AC 486, 525H “a single indivisible question, to be answered largely as a matter of impression", I have no doubt that the changes in the immigration rules, unless they specify to the contrary, take effect whenever they say they take effect with regard to all leave applications, those pending no less than those yet to be made.

40.  That said, one particular feature of the scheme strikes me, as I understand it strikes all your Lordships, as conspicuously unfair: the irrecoverability of the substantial charge made upon an application for leave which, as here, becomes doomed to fail by virtue of a subsequent change in the rules. There can surely be no doubt that the Secretary of State has power in these circumstances to return the charge. That, indeed, would seem to me the only fair and rational course open to her. So far as the appeal itself is concerned, however, in my judgment it cannot succeed and must be dismissed.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

41.  The issue on this appeal is whether the application made by the appellant, Dr Odelola, for leave to remain in the UK as a postgraduate doctor should have been considered under the immigration rules as they were as at the date of her application, 17 January 2006, or as they were as at the date of the Secretary of State’s decision, 26 April 2006.

42.  The current immigration rules originate in rules (“the 1994 Rules”) contained in a Statement laid before Parliament on 23 May 1994 (HC 395), which have been varied by a number of subsequent Statements of Changes, also laid before Parliament. The Statement of Changes in Immigration Rules 2005 (HC 299) (“the 2005 Statement”), which came into force on 19 July 2005, amended the rules so that, inter alia, a person with a medical qualification was (subject to satisfying other requirements immaterial for present purposes) eligible to apply for an extension to stay in the UK as a postgraduate doctor. However, the Statement of Changes in Immigration Rules 2006 (HC 1016) (“the 2006 Statement”), which came into force on 3 April 2006, altered this provision so that it only applied to a person with a medical qualification from a UK institution.

43.  As the appellant is a Nigerian citizen, who graduated as a medical doctor (with distinction) from the University of Ibadan in 1988, the difference between the 2005 Statement and the 2006 Statement is crucial. The factual background, the procedural history, the relevant statutory provisions, and the relevant parts of the immigration rules and of the 2005 and 2006 Statements are more fully set out in the opinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, which I have had the privilege of seeing in draft.

44.  The appellant’s case is that, because the rules as amended by the 2005 Statement were in force when she made her application, it should have been considered on the footing of the rules as amended by that Statement, and not as amended by the subsequent 2006 Statement. The Secretary of State, however, applied the rules as they existed as at the date of her decision, and that approach was upheld by the Asylum and Immigration Tribunal (HR/ 00295/ 2006) and by the Court of Appeal ([2008] EWCA Civ 308). That approach is challenged on the ground that the 2006 Statement is silent on the question of whether it is to apply to applications which had already been made when it came into force, and, in those circumstances, the presumption against retrospectivity means that it did not extend to the appellant’s application. The presumption is said to apply on two alternative grounds. The first is section 16(1)(c) of the Interpretation Act 1978, and the second the common law presumption against retrospectivity.

45.  Section 16(1)(c) of the 1978 Act applies to “an Act” and “an enactment". However, through section 23(1), it also applies to “subordinate legislation", which extends, by virtue of section 21(1), to “orders, rules, regulations …. and other instruments made … under any Act". In my opinion, although referred to in the Immigration Act 1971, and potentially subject to control by the legislature under that Act, the immigration rules were not “made … under [an] Act". In the 1971 Act, section 1(4) refers to immigration rules being laid down by the Secretary of State, and section 3(2) sets out the procedure for laying before Parliament statements of those rules and of any changes thereto. However, neither section purports to be the source of the power to make such rules. The definition of “immigration rules” in section 33(1) of the 1971 Act takes matters no further: it refers back to section 3(2), and makes it clear that any reference to the rules is to the rules “for the time being".

46.  As Ms Laing QC, for the Secretary of State, points out, the view that the rules are not made under any enactment is consistent with the statutory history. From the Aliens Act 1905 up to and including the Commonwealth Immigrants Act 1968, the immigration statutes contained no reference to any rules. The first time the immigration rules were mentioned in any statute was in the Immigration Appeals Act 1969, whose section 24(1) was not dissimilar for present purposes from section 1(4) of the 1971 Act. However, it is clear that such rules had existed long before that Act. That tends to support the view that the rules are non-statutory in origin. The view is also consistent with legislation subsequent to 1971. In particular, the Nationality, Immigration and Asylum Act 2002, which introduced new provisions for appeals (applicable in this case), adopts the same definition of immigration rules as the 1971 Act.

47.  In these circumstances, the Secretary of State’s decision in this case cannot, in my view, be impugned on the ground that it was based on an interpretation of the immigration rules which conflicted with section 16(1)(c) of the 1978 Act. Despite its wide words, section 21(1) of that Act does not apply to the immigration rules.

48.  I turn then to what, at least in my view, is a stronger basis for the appellant’s argument, namely the common law presumption against retrospectivity. Your Lordships were not referred to any case in which it was held that such a presumption exists in relation to rules issued by the executive, or indeed to any provision other than one in a statute. There is, however, much authority to support the proposition that the presumption exists in common law in relation to vested rights under statutes - see the discussion in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 193-197 and 199-202 per Lord Rodger of Earlsferry. There is also what Lord Rodger called “a further presumption", which he also described as “a more limited version of the more general presumption", namely “that legislation does not apply to actions which are pending at the time when it comes into force unless the language of the legislation compels the conclusion” - Wilson [2004] 1 AC 816, para 198.

49.  In agreement with Mr Drabble QC, for the appellant, I find it hard to see why the common law presumption against retrospectivity should be limited to statutes. It seems to me that, given that it is a principle developed by the courts, there is no reason why it should not be applied to any set of rules which give rise to legal rights or obligations. A familiar example of the application of the presumption is in relation to vested limitation defences, where a statutory limitation period is subsequently extended by an amendment - see e.g Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553. In my opinion, the presumption should equally apply in a case where a limitation period arises under a non-statutory set of rules, provided that they have legal effect. The notion that the presumption should apply relatively widely is supported by the fact that it has been said to be based on fairness - see L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525, cited with approval in Wilson [2004] 1 AC 816, paras 196 and 201.

50.  Given that the presumption is therefore capable of applying relatively widely, the next question is whether it could apply to the provisions such as the immigration rules. The rules contain a mixture of substantive and procedural provisions, and guidance to the legislation and practice, and they have to be laid before Parliament. However, they are not legislation. Much has been made of the fact that the rules are sui generis, as can be seen from the extracts from earlier judgments on the immigration rules collected by Buxton LJ below - [2008] EWCA Civ 308, para 12. But I do not see how that helps on the question of whether the presumption applies.

51.  As I see it, the crucial point for present purposes is that the immigration rules are intended to have legal effect, and to give legal rights. Part V of the 2002 Act contains the current provisions governing immigration appeals. Under section 84(1), an appeal against an immigration decision can be brought on various grounds, including that it was “(a) … not in accordance with immigration rules", and that it was “(e) … otherwise not in accordance with the law". By section 86(3) of the 2002 Act, the Tribunal “must allow the appeal” if the decision “(a) … was not in accordance with the law (including immigration rules)"….” .

52.  Accordingly, the appellant had a right to have her application determined by the Secretary of State in accordance with the immigration rules. (Indeed, even in the absence of sections 84 and 86 of the 2002 Act, that was probably the case: if such rules are publicly promulgated by the Secretary of State, then there must be a powerful argument for saying that, as a matter of law, at least in the absence of good reason to the contrary, she must abide by those rules when making immigration decisions). In my opinion, this means that the common law presumption against retrospectivity can apply to amendments to the immigration rules. Consider the position if the rules had provided that, where an application was not heard within a period of six months of its being made, it could only be refused on grounds of national security; and the rules were then amended so that the period was extended to one year. In my view, in such a case, there would be a presumption that the change was not meant to extend to an application made more than six months before the period was extended by amendment.

53.   Given that the presumption against retrospectivity can apply to changes to the immigration rules, the next issue is whether it can be relied on in this case. I consider that the presumption, at least in its traditional sense, cannot be relied on, as this is not a case where there was a vested right at the time of the relevant amendment. At the time the 2006 Statement came into effect, the appellant did not have a right to have her application determined by reference to the rules as amended by the 2005 Statement. No doubt, she had that hope or even that expectation, but she did not have that legal right. Accordingly, if the amendments made by the 2006 Statement applied to her application, there would be no interference with any vested right. That is in contrast with the position of the hypothetical applicant mentioned in the previous paragraph, whose application was not determined within a period of six months: if an amendment was then made extending the period to a year, he could properly claim to have a vested right to have his application granted unless it was contrary to national security. By the time the extension was introduced, the six months had expired without his application being granted, so the right under the rules to have his application refused only on national security grounds was, as it were, tucked under his belt.

54.  I accept that the difference between the two cases is subtle, but, in my view it is clear and principled. In the example, a right given under the rules had actually come into existence by the time of the amendment (albeit that, subject to public law and human rights arguments, it could subsequently be removed by amendment). On the other hand, in this case, no such right had ever come into existence. I also accept that the issue of whether or not there is an accrued or vested right is not easy, and indeed it can be said that arguments either way on the issue have elements of circularity, as pointed out in Wilson [2004] 1 AC 816, para 196. Nonetheless, the distinction between the appellant’s position and that of the hypothetical applicant appears to me to be clear in logic and principle, and, in connection with the application of the presumption, it is supported by the passages in the judgment of Dickson J in Gustavson Drilling (1964) Ltd v Minister of National Revenue [1977] 1 SCR 271, 279-280 and 282-283, cited and discussed in Wilson [2004] 1 AC 816, paras 191-194.

55.  However, despite my conclusion that no vested right is involved here, it seems to me that, when considering whether the amendments made by the 2006 Statement extend to an existing application, it is appropriate to take into account the potential unfairness if it does so. After all, the issue in this case is ultimately one of interpretation, and when deciding such an issue, the general fairness of one interpretation over another is, at least potentially, a relevant factor. Indeed, the presumption against retrospectivity is itself a rule of construction, or, perhaps more accurately, a factor to be taken onto account when interpreting a statute or rule. It is not some sort of substantive, or even procedural, legal right. That is well illustrated by the fact that, in this case, the appellant realistically disclaims any reliance on the doctrine of legitimate expectation. Further, as already mentioned, the presumption itself is based on fairness.

56.  In addition, the point made in Wilson [2004] 1 AC 816, para 198, quoted at the end of para 48 above, provides some support for the notion that, even though no vested right is involved here, some principle not dissimilar from the presumption may still be invoked. The appellant’s application in this case is similar to an “action … which [is] pending” at the time the amendments made by the 2006 Statement came “into force". It is true that, in that paragraph, Lord Rodger was, as I read it, directing attention to a case where there was a vested right (as indicated by his view that the case was “a more limited version of the general presumption that legislation is not intended to affect vested rights”). However, he also said that the presumption can arise in such circumstances in relation “to all legislation, not just to legislation with retroactive effect".

57.  The notion that the unfairness of a change in the rules applying to existing applications can be taken into account when deciding if they do so apply, even if no vested right is involved is also supported by a passage, cited with approval in Wilson [2004] 1 AC 816, para 200, from the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, 724. He said that it was “not simply a question of classifying an enactment as retrospective or not retrospective", but that “it may well be a matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended". The fact that the weight to be given to the presumption varies in this way assists the conclusion that one can take into account the fairness of the result when considering whether an amendment applies to existing applications, even where no vested right is involved.

58.  Turning to this particular case, it does appear to me that there is some unfairness if the 2006 Statement applies to existing applications, such as that of the appellant. That is partly because, as my noble and learned friend Lord Scott of Foscote puts it, such an applicant would have “made her application on the basis of the Secretary of State’s rules in force at the time", albeit that there was always the possibility that the rules might be changed. It is also because, as the appellant did, she would have had to pay a fee, calculated by reference to the benefits she would obtain if her application succeeded. As my noble and learned friend, Lord Hope of Craighead says, there is no provision for the return of this proportion of the fee, and it is not “fair dealing” for it to be retained. And, as mentioned, fairness is ultimately the basis for the presumption against retrospectivity.

59.  Having said that, I consider that the unfairness of the 2006 Statement applying to existing applications such as that of the appellant is relatively slight. There is no question of the appellant having a vested right or a legitimate expectation. The immigration rules would have been expected to be amended from time to time, as needs and perceptions change: they had been frequently amended (some 40 times) between 1994 and 2006. If the amendments made by the 2006 Statement extend to existing applications, applicants in the position of the appellant would suffer disappointment, but it cannot be put higher than that, as is underlined by the fact that legitimate expectation cannot be invoked. And they would have wasted around £300, a significant sum, but not a large amount. So unfairness is a factor which the appellant can invoke, but it does not have great force.

60.  I turn, then, to the central issue, namely whether the amendments made by the 2006 Statement extend to an application made, but not determined, before the Statement came into force. In common with all your Lordships, I have reached the conclusion that they do. First, the natural meaning of the 2006 Statement, read on its own, is that its provisions will extend to all applications, whenever made, from 3 April 2006. That is because, on its frontsheet, the Statement is recorded as “[l]aid before parliament on 30 March 2006", and, on the first page, immediately before its 16 paragraphs of amendments, there is the sentence that “[t]hese changes shall take effect on 3 April 2006". And all the rule changes in those 16 paragraphs are expressed in terms which most naturally suggest that they will apply forthwith. Thus, the crucial provision in this case, para 4, substitutes a new para 73 in the 1994 rules, which sets out “[t]he requirements to be met by a person seeking extension of stay as a postgraduate doctor…. are…".

61.  Secondly, the 1994 Rules include para 4, which provides that they come into force on 1 October 1994, “and will apply to all decisions taken on or after that date save that any application made before 1 October 1994 … shall be decided under the provisions of [the previous immigration rules, namely the Immigration Rules 1990, HC 251], as if these Rules had not been made". In my judgment, this paragraph makes it pretty clear that if a Statement is not intended to extend to existing applications, that will be spelt out. A reader of the 2006 Statement, which makes amendments to the 1994 Rules, would see that, where, as in the case of the 1994 Rules themselves, it was intended that a Statement should not extend to existing applications, that was stated. The fact that para 4 of the 1994 Rules also refers to those rules applying from 1 October 1994 provides further support for this view. Its effect is that the 1994 Rules, as amended by any subsequent Statements, extend to any application made after 1 October 1994. That means that the rules as amended by the 2006 Statement would extend to any application made after 1 October 1994, including the instant application, although, of course, if a subsequent Statement provided otherwise, or if an application was determined before a particular amendment came into effect, that amendment would not extend to that application.

62.  Taken together, the wording of the 2006 Statement and the effect and wording of para 4 of the 1994 Rules establish to my satisfaction that the 2006 Statement does extend to existing applications, notwithstanding the unfairness of that result in relation to some such applications. The natural meaning of the language of the 2006 Statement, when read together with para 4 of the 1994 Rules, is, in my judgment, too strong to be rebutted by the comparatively slight, albeit real, unfairness which results in some cases (including that of the appellant) if the 2006 Statement does extend to current applications.

 
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